Caperton Capers

By any measure, the $3 million West Virginia coal mogul Don Blankenship anted up to elect his candidate to the state supreme court in 2004 was no shy wager.

But it wasn’t just money that persuaded five U.S. Supreme Court justices to hold that Brent D. Benjamin should have recused himself when a case involving Blankenship’s coal company came up on appeal. Blankenship’s support created an appearance of bias that violated due process when Benjamin repeatedly denied motions to disqualify himself before he voted on the case.

But the decision, Caperton v. A.T. Massey Coal Co., issued in June, hardly sets the standard rule-makers elsewhere had hoped for to help them determine exactly how much money leaves the perception that justice is for sale.

“This is not the simplest of decisions, and there are a lot of things that need to be looked at,” says William K. Weisenberg, chair of the ABA Standing Committee on Judicial Independence. The committee last year drafted a set of principles for judicial disqualification tied to campaign giving, and then shelved them as the justices contemplated Caperton.

The committee now plans to take a second look in or­der to present a new set of standards to the House of Dele­gates at next year’s ABA Midyear Meeting in Orlando, Fla.

“We’re not going to rush,” says Weisenberg, an as­sistant executive director for the Ohio State Bar Asso­cia­tion in Columbus.

In Wisconsin, however, the state supreme court is expected to conduct a public hearing this fall on competing recusal proposals. The state justices postponed an April hearing as they awaited the outcome in Caperton.

One proposal comes from the state Realtors Asso­ciation, which argues that candidate endorsements or contributions within the legal limit—$10,000 from individuals in supreme court races—do not in themselves call for recusal. The other, by the state League of Women Voters Education Fund, would require re­- cusal for contributions of $1,000 or more.

“They haven’t set a date, but the issue is smack-dab in front of them,” says Madison lawyer Mike B. Wittenwyler, who represents the Realtors.

‘AN EXCEPTIONAL CASE’

Still, Justice Anthony M. Kennedy, writing for the majority, treated Caperton more as an outlier than a trendsetter. “Not every campaign contribution by a litigant or an attorney creates a probability of bias that requires a judge’s recusal,” he wrote,” but this is an exceptional case.”

In Caperton, Blankenship’s company was headed for the West Virginia Supreme Court of Appeals to duck the $50 million judgment a rival mine owner had won against Massey in a fraud case.

It didn’t help Blankenship’s argument that his man, obscure Republican lawyer Benjamin, not only won the partisan contest but became chief justice and twice cast the deciding vote in Massey’s favor. Two other justices had disqualified themselves—one for publicly criticizing Blankenship and the other after photos surfaced of him and Blankenship vacationing together on the French Riviera.

But it didn’t necessarily matter that Blankenship’s expenditures—mostly through a tax-exempt group that produced issue ads—dwarfed spending by all other Benjamin supporters, even tripling the amount raised by Benjamin’s own campaign committee.

The majority concluded that Blankenship’s “signi­ficant and disproportionate influence,” coupled with the timing of the election and the approaching case, raised an unconstitutional probability of bias that required disqualification.

But the majority didn’t take on the harder task of determining whether Blankenship’s efforts helped Benjamin win or contributed to the defeat of Demo­cratic incumbent Warren McGraw, himself a prolific fundraiser.

McGraw, who was prone to verbal gaffes his op­ponents turned to their advantage, won editorial support from only one of the state’s major newspapers. Benjamin won comfortably with 53 percent of the vote.

For more detailed guidance, states like Wisconsin will likely turn to the dissent by Chief Justice John G. Roberts Jr. for clues on how to proceed. Roberts posed a list of 40 meticulous questions. Among them, how to treat independent spending that candidates can’t control; what to do with supporters who aren’t parties to the litigation; and the potential for challenges to judges who may control the outcomes of cases with their votes.

“Sometimes the cure is worse than the disease,” Roberts remarked.

All three conditions existed in Caperton. Though Blankenship did contribute directly to Benjamin, the bulk of his spending, $2.4 million, was made through an independent organization called And for the Sake of the Kids.

Also, though Massey Coal is widely regarded as Blankenship’s alter ego, he wasn’t a party to the underlying litigation, a situation Caperton’s lawyers plan to rectify on remand by joining Blankenship. Benjamin cast the deciding vote both times the case came before him, giving Massey 3-2 victories.

HIGH STAKES AND A FAIR SHAKE

Nationally, judicial campaign fundraising for state supreme court seats soared to $157 million in contests conducted from 1999 to 2006, more than double the amount for the previous four election cycles combined, according to the Brennan Center for Justice at New York University School of Law.

In Wisconsin, elections for three contested seats from 2007 to 2009 drew six nonpartisan candidates for the 10-year terms. The candidates and groups working on their behalf spent $5.8 million in 2007, $5.9 million in 2008 and another $1.8 million so far on April’s election, according to the Wisconsin Democracy Campaign, a nonpartisan political watchdog group.

While the Realtors’ proposal supports the status quo, the plan from the League of Women Voters is broader. It targets parties or their lawyers, who must disclose $1,000 or more in contributions to a campaign if they wind up in front of that judge before the election. When the party is an entity—say, a business organization or trade union—the proposal also covers the entity’s board members.

In addition, recusal is mandatory after disclosure unless, at minimum, the party opposed to the contributing side waives it and the judge agrees to continue. Similar rules cover distribution within 60 days of the election of 50 or more “substantially identical” campaign messages through electronic means or by telephone.

“We believe that is a significant contribution,” says Andrea Kaminski, executive director of the League of Women Voters, about the $1,000 trigger. “It’s just a matter of having all the cards on the table and giving everyone a fair shake.”

But the ABA’s experience with hard and fast numbers may not bode well for the league proposal. In 1999, the association amended its Model Code of Judicial Con­duct with a fill-in-the-blank-style provision that allows rule-makers to insert the amount they deem excessive. Of the 39 states that elect judges, exactly two have adopted the model.

Moreover, reins on contributions to judicial candidates are unlikely to affect organizations that operate independently of campaigns, chiefly by producing exaggerated attack ads slamming disfavored candidates, as occurred in the West Virginia election.

Those phony issue ad groups account for the bulk of spending in Wisconsin Supreme Court races. Since 2007, such groups have spent almost $8.3 million, while the six candidates spent just a little more than the $5.1 million they raised themselves.

What’s more, because issue ad groups typically aren’t aligned with particular candidates or parties, they don’t have to disclose their sources of income, which can include donors state law forbids from making direct contributions to office seekers.

The league and other reformers are backing two pieces of legislation to close that gap through greater disclosure by independents and public financing of judicial campaigns, which a North Carolina study showed significantly reduced contributions by lawyers and businesses, typically the largest sources of judicial campaign cash.

“The league is concerned that the candidates are becoming bystanders,” says league lawyer Virginia Bartelt of Madison.